Film festival’s use of copyrighted time-lapse Adams Morgan photograph was fair use

Holding that a film festival organizer’s use of a photograph of a Washington D.C. neighborhood near the festival’s venue on a website to inform attendees about the local area was fair use, a federal district court in Alexandria, Virginia has granted the organizer’s motion for summary judgment dismissing the photographer’s copyright infringement claim. The court also dismissed the photographer’s claim for alteration of copyright management information, finding that the photographer abandoned that claim (Brammer v. Violent Hues Productions, LLC, June 11, 2018, Hilton, C.).

Professional photographer Russell Brammer posted a time-lapse depiction of Washington D.C.’s Adams Morgan neighborhood on several online image-sharing websites in addition to his personal website. He applied for a copyright registration for the photograph in September 2016, which he received in July 2017. In 2016, Violent Hues, which organizes the annual Northern Virginia Film Festival, posted a cropped version of the photograph on a website it uses as a reference guide for festival participants and attendees providing information about the local area. Violent Hues’ owner contended that he found no indication that the photograph was copyrighted and thought it was publicly available. After Brammer’s attorney sent a cease and desist letter, Violent Hues immediately removed the photograph from its website.

Brammer nonetheless sued Violent Hues for copyright infringement and alteration of copyright management information. Violent Hues moved for summary judgment on both claims. Brammer submitted no opposition to the alteration claim, and the court dismissed it as abandoned. It then addressed Violent Hues’ arguments that the infringement claim fails under the fair use doctrine, finding that each of the four factors considered weighed in favor of finding fair use.

Purpose and character. The court found Violent Hues’ use of the photograph to be transformative in function and purpose. While Brammer’s purpose in taking and posting the photograph was promotional and expressive, Violent Hues used the photograph to inform attendees about the local area, according to the court. On the particular website on which the photograph was posted, Violent Hues was not selling a product or generating revenue.

The court also found that Violent Hues used the photograph in good faith. This was evidenced by the owner’s testimony that he found the photograph online with no indication it was copyrighted, as well as the fact that upon receiving a cease and desist letter, Violent Hues immediately removed the photograph from its website.

Nature of work. Highlighting the legal principal that fair use is more likely to be found in factual rather than fictional works, the court concluded that the picture’s factual nature—it depicts Adams Morgan to inform festival attendees about that neighborhood—weighs in favor of fair use. The fact that the photograph also contained creative elements did not overcome this. The court also noted that the photograph’s prior publication on several websites since 2012 favored a fair use finding.

Amount and portion of use. The fact that Violent Hues cropped approximately half of the version of Brammer’s photograph that it found online also favored a fair use finding, the court held. It used no more of the photograph than necessary to convey the desired information.

Market effect. The court cited several reasons why Violent Hues’ use of the photograph had no effect on the photograph’s potential market. First Brammer testified that he has been compensated for the photograph six times since he first posted it, and at least two of those sales occurred after Violent Hues allegedly infringed. Second, Brammer testified that he is making no current efforts to market the photograph. Finally, the fact that Violent Hues is not selling or otherwise generating revenue from the photograph, but instead is using it for informational purposes, undercuts any finding that the use negatively impacts Brammer’s market for the photograph, the court held.

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